Himachal Pradesh High Court
Mast Ram vs State Of Himachal Pradesh on 15 June, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 107 of 2013
.
Reserved on: 03.06.2015
Date of decision: 15.6. 2015
Mast Ram
......Appellant.
Vs.
State of Himachal Pradesh
.....Respondent.
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Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge
The Hon'ble Mr. Justice Sureshwar Thakur, Judge
Whether approved for reporting?1 Yes
For the appellant : Mr. Vikas Rathore, Advocate.
For the respondent: Mr. Ramesh Thakur, Assistant Advocate
General.
Rajiv Sharma, J.:
This appeal is instituted against the judgment and order, dated 15.03.2013/19.03.2013, rendered by the learned Additional Sessions Judge, Fast Track Court, Hamirpur, H.P., whereby the appellant-accused, who was charged with and tried for the offence punishable under Sections 376 & 506 of the Indian Penal Code, was convicted and sentenced to undergo rigorous imprisonment for a term of ten years and to pay a fine of `50,000/- for the offence punishable under Section 376 of the Indian Penal Code and in default of payment Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 2 of fine, he was further ordered to undergo simple imprisonment for a term of one year. He was also sentenced to undergo simple imprisonment for a term of one year and to pay a fine of `1,000/- for .
the offence punishable under Section 506 of the Indian Penal Code and in default of payment of fine to further undergo simple imprisonment for a term of one month.
2. Case of the prosecution, in a nut-shell, is that the prosecutrix was a student of 10+1 at Government Senior Secondary School Chabutra, District Hamirpur, H.P. On 02.07.2012, she was brought for medical check up at Thakur Surgical and Maternity Nursing Home, Hamirpur, H.P. by her relatives. She was found three months pregnant. She disclosed that her conception was due to forcible sexual intercourse by the accused for over a period of 1 ½ years. She was admitted at Thakur Surgical and Maternity Nursing Home, Hamirpur on 03.07.2012 and her MTP (abortion) was conducted on 05.07.2012. Father of the prosecutrix Ajit Singh, convened a Panchayat meeting at his house on 05.07.2012 in the presence of accused and his wife and the compromise was effected. On 07.07.2012, Shakuntla Devi, mother of the prosecutrix filed a complaint against the accused before the Gram Panchayat, Chabutra for initiating legal action again him. The complaint was forwarded by the Gram Panchayat to the police on 11.07.2012. Thereafter, FIR No. 66/12, dated 11.07.2012 was registered against the accused. Police also preserved the clothes of the prosecutrix which she was wearing at the time of abortion. The date of ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 3 birth certificate of the prosecutrix was procured from the office of Panchayat Secretary, Gram Panchayat Chabutra. The vaginal slides, swabs and pubic hair preserved during the medical examination were .
sent for forensic examination to FSL, Junga. The matter was investigated and the challan was put up in the Court after completion of all the codal formalities.
3. The prosecution has examined number of witnesses to support its case. The accused was also examined under Section 313 of the Cr. P.C. Accused denied the case of the prosecution. The accused was convicted and sentenced, as noticed hereinabove. Hence, this appeal.
4. Mr. Vikas Rathore, learned counsel for the appellant has vehemently argued that the prosecution has failed to prove the case against the appellant.
5. Mr. Ramesh Thakur, Assistant Advocate General has supported the judgment and order, dated 15.03.2013/19.03.2013.
6. We have heard the learned counsel for the parties and gone through the judgment and records, carefully.
7. PW-1, Dr. Tanu Priya, has issued MLC Ex. PW1/A. According to her opinion, as per physical examination, sexual intercourse had taken place and the possibility of recent abortion could not be ruled out.
8. PW-2 is the prosecutrix. She was studying in 10+1 at GSSS Chabutra. Accused was related to her as paternal uncle. The grand ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 4 daughter of the accused was also the student of 10+1 at GSSS Chabutra and was her classmate. Her name was Manisha. About 1 ½ years back, she had gone to her house to meet her. She was not at .
home at that time. Accused was at home. He took her in a room, shut the same and said that he wanted to establish physical relations with her. Despite her resistance, he committed sexual intercourse against her wishes and without her consent. Accused used to give her `100/- and sweets (meethai). Accused also threatened her to defame in the society in case she disclosed his acts to anyone. In the month of June- July, 2012, she had sensation of vomiting and giddiness. She disclosed the problem to her mother. Her mother sent her along with Seema, Anu Bala and Saroti to a private hospital, i.e., Thakur Clinic at Hamirpur. On 03.07.2012, they came to the hospital for medical check up. She was found pregnant. The doctor also disclosed that due to the pregnancy, there was threat to her life. On returning back to her home, she told the aforesaid fact to her mother. On the next day, she was sent alongwith her relatives to the hospital, where her abortion was conducted. She remained hospitalized for two days. Thereafter, her mother filed an application before the local Gram Panchayat. She deposed in her cross-examination that she did not know the name of the village where accused resides. It took 15 minutes on foot from her house to reach the house of the accused. It took half an hour to reach GSSS Chabutra from her house on foot. Police recorded her statement 2-3 times. While making statement to the police, she had also disclosed ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 5 that the accused used to give her `100/-(the witness was confronted with her statements, dated 11.07.2012 and 12.07.2012 under Section 161 Cr. P.C., wherein it was not so recorded). While making statement .
to the police, she had also disclosed that she had gone to the house of the accused to meet his grand daughter Manisha (the witness was confronted with her statements, dated 11.07.2012 and 12.07.2012 made under Section 161 Cr. P.C., wherein it was not so recorded). She also admitted that the accused was married and his son was also married and they live together in the same house. She also admitted that the accused had two grand daughters, who also live with him in the same house. On 03.07.2012, when she came for her medical check up at Thakur Clinic, the fact of pregnancy was detected and disclosed to her and other persons accompanying her. On returning home, she had told the aforesaid fact to her mother. She also told her mother that she had become pregnant due to sexual relations with the accused. She also admitted that on being discharged from Thakur Clinic, they returned back to home in the vehicle of the accused. She also admitted that the accused drives a taxi. She also admitted that on 03.07.2012, her mother did not come to the Clinic at Hamirpur. Her mother came to the clinic on 04.07.2012. Her father also came to the Clinic, but she did not remember the date.
9. PW-3, Smt. Shakuntla Kumari, is the mother of prosecutrix. According to her, the age of the prosecutrix was 15 years. She sent her daughter alongwith Seema, Anu Bala and Saroti Devi for ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 6 medical check up to Thakur Clinic at Hamirpur. On 03.07.2012, after medical check up, her daughter returned home and told that she was pregnant. She was advised abortion because there was threat to her .
life. She conceived because of forcible sexual relations with the accused for the last 1 ½ -2 years. On 05.07.2012, she was sent for termination of the pregnancy to Thakur Clinic, Hamirpur. Her daughter returned after the abortion on the same day in the evening. Thereafter, she reported the matter to Pradhan, Gram Panchayat Chabutra by filing a complaint Ex.PW3/A. The complaint was forwarded by the Panchayat to Police Station, Sujanpur. Her daughter got identified the places where she had been raped by the accused. Thereafter, they came to Government Hospital at Sujanpur. The medical check up of her daughter was conducted at Sujanpur Hospital. According to her, no compromise took place before the Panchayat with the accused. She was cross-examined by the learned Public Prosecutrix. She also admitted that her husband entered into a compromise with the accused before Gram Panchayat, Chabutra. She did not remember the date on which the compromise took place with the accused. She did not know the person who scribed the compromise. She has admitted that the day her daughter went for her medical check up at Thakur Clinic Hamirpur, she travelled to and fro in the Taxi of the accused. She never went to Thakur Nursing Home. Her husband also never went to Thakur Clinic when abortion of her daughter took place. Her husband came to the village 3-4 days after the abortion of her daughter. ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 7
10. PW-4, Mis. Poonam, is the sister of prosecutrix. According to her, the age of the prosecutrix was 16 years and she was student of 10+1 at GSSS Chabutra. She was brought to Thakur Clinic at .
Hamirpur on 02.07.2012. She was pregnant. On 03.07.2012, she was again taken to Thakur Clinic, where the abortion was conducted. She returned back from the Clinic on 05.07.2012.
11. PW-5, Smt. Saroti Devi, deposed that on 02.07.2012, they brought the prosecutrix to Thakur Hospital, Hamirpur. She was also accompanied by Seema Devi and Anu Bala. After medical check up of prosecutrix, she was found to be pregnant. They were also told that there was a threat to the life of the prosecutrix and in order to save her, termination of pregnancy was necessary. Thereafter, they inquired from the prosecutrix about the person who was responsible for the pregnancy. The prosecutrix disclosed the name of the accused. On the next day morning, they again came to Thakur Hospital at Hamirpur. The prosecutrix was admitted in the hospital. On 05.07.2012, before the prosecutrix was discharged from the hospital, they called the accused alongwith the vehicle to verify the facts disclosed by the prosecutrix. The accused admitted his fault and gave `6000/- to meet the expenses of the abortion. They returned home from the Clinic in the vehicle of the accused on 05.07.2012. In her cross-examination, she stated that she had told the police that the accused had paid a sum of `6000/- as the medical expenses incurred for abortion (the witness was confronted with her statement Mark-C, wherein this fact was ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 8 not so recorded). In her statement, she had not disclosed that the accused was asked by her regarding his involvement on 05.07.2012 at Thakur Clinic Hamirpur. The prosecutrix was discharged from the .
Clinic on 05.07.2012 at 7:00 p.m. Mother of the prosecutrix was also present and they returned together to the village in the same vehicle.
12. PW-6, Puran Chand, deposed that he went to the house of Ajit Singh alongwith Vidhya Devi, Ward Member. The other two ward members, i.e., Joginder and Raman also reached the house of Ajit Singh. The wife of the accused Champa Devi and Ajit Singh were also present. The parties had written a compromise which was presented for attestation. The wife of the accused had agreed to bear the expenses of the medical treatment etc. He proved compromise Ex. PW6/A. The accused at first instance had admitted, but thereafter he refused regarding his involvement. He was declared hostile and was cross- examined by the learned Public Prosecutor. He denied the suggestion that when he reached the house of Ajit Singh on 05.07.2012, accused Mast Ram was also present there. He also denied that after Ajit Singh narrated him the matter, he enquired from the accused about his involvement, on which he admitted his fault, voluntarily stated that the accused had left the house before he reached there. He also denied that the compromise Ex. PW6/A was arrived at in his presence and thereafter, it was prepared and the signatures of the persons present there and the accused were obtained on the same. He also denied the suggestion that Ajit Singh had told him that the accused had been ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 9 raping his daughter for last 1 ½ years. In his cross-examination by the learned defence counsel, he admitted that when he went to the house of Ajit Singh on 05.07.2012, he did not meet either the prosecutrix or her .
mother. He did not know who had scribed the compromise Ex. PW6/A.
13. PW-7, Joginder Singh, deposed that Ajit Singh produced a written compromise Ex.PW6/A, which he signed as a Ward Member. He did not enquire before signing the compromise Ex. PW6/A either from Ajit Singh or other persons present there. He signed the compromise since it had been prepared and already signed by other persons. In his cross-examination by the learned Public Prosecutor, he admitted that on 05.07.2012, when they reached the house of Ajit Singh, he disclosed that the accused had been doing wrong act with his daughter, the prosecutrix for the last 1 ½ years. He also admitted that Up Pradhan Puran Chand inquired about the incident from the accused, to which he admitted his fault. In his cross-examination by the learned defence counsel, he stated that he had no conversation with the accused.
14. PW-8, Dr. Shobna Thakur, deposed that on 02.07.2012, the prosecutrix was brought to her. She found her three months pregnant. On the next day, i.e., 03.07.2012, the prosecutrix was again brought to her in a critical condition by her Bua. She was admitted in the hospital on 03.07.2012 and abortion was conducted on 05.07.2012.
15. PW-9, Santosh Kumar deposed that he went to the house of Ajit Singh and found that some persons of the village had gathered there. Accused Mast Ram was also present there. The wife of the ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 10 accused was also present. He alongwith others inquired from the accused regarding the allegations made by Ajit Singh, on which, he admitted his involvement.
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16. PW-10, Mohinder Singh, Panchayat Secretary, deposed that on 11.07.2012, a complaint Ex. PW3/A alongwith a compromise Ex. PW6/A was received. He issued the date of birth certificate as per Ex. PW10/C. He also produced the original birth register for the year 1996. The date of birth of the prosecutrix was recorded as 07.08.1996. The entry was made on the basis of information given by Ashok Kumar, Up Pradhan. In his cross-examination, he has admitted that there were no signatures of Ashok Kumar, Up Pradhan on the register, volunteered that there were signatures of Rattan Chand, who was relative of the prosecutrix. There was no copy of the compromise Ex. PW6/A in the Panchayat record, since the same was not retained.
17. PW-11, Ajit Singh, is the father of the prosecutrix. He deposed that on 04.07.2012, he was at his work place, where he received a telephone call from his wife that his daughter was unwell and was admitted at Thakur Nursing Home at Hamirpur. He went to Thakur Nursing Home at Hamirpur. After meeting his daughter, he also met the doctor, who told him that in order to save the life of the prosecutrix, her abortion is required. His daughter disclosed to him that accused had been raping her for the last 1-1½ years at his home and Jhangri jungle. He had been paying her `100/-. On 05.07.2012, he convened the Panchayat. In his cross-examination, he has stated that ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 11 while making statement to the police, he had not disclosed that his daughter told him of being raped by the accused for the last 1-1 ½ years. In his statement to the police, he had disclosed that during the .
meeting in the presence of the Panchayat Members and other persons, the accused has admitted his guilt and fault (he was confronted with his statement Mark-F, wherein it was not so recorded). In his statement to the police, he had told that the accused had borne the expenses of the abortion (he was confronted with his statement mark-F, wherein it was not so recorded).
18. PW-12, Sh. Raman Kumar, was the witness to compromise Ex. PW6/A. He was also declared hostile. He denied the suggestion during cross-examination by the learned Public Prosecutor that the accused was present during the meeting and had signed Ex. PW6/A in his presence. He also denied that the accused had admitted his fault and guilt for raping the daughter of Ajit Singh. However, he admitted that on 11.07.2012, Shakuntla Devi, mother of the prosecutrix filed a complaint alongwith compromise to the Panchayat, which was forwarded to Police Station Sujanpur. He accompanied the police alongwith Joginder Singh and prosecutrix to the house of accused, where the prosecutrix identified the room, in which she had been raped. He also admitted that on 14.07.2012, he remained associated with the police. The prosecutrix produced her clothes, i.e., Salwar and Kameej, which were taken into possession by the police vide seizure memo Ex. PW2/A. He further admitted that the clothes were sealed in a cloth ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 12 parcel by affixing six seals of impression H. He also admitted that on 14.07.2012, the accused led the police party to Jhangri jungle and identified the spot.
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19. PW-13, Dr. Raj Kumar, has examined the accused and issued MLC Ex. PW13/B. PW-14, Constable Pawan Kumar is a formal witness. PW-15, Dr. Rakesh Sharma, Radiologist, has undertaken the ultrasound examination of the prosecutrix. PW-16, HHC Amarjit, PW- 17, LC Reena Kumari and PW-18, Constable Lekh Raj are formal witnesses.
20. PW-19, HC Ranjit Singh, deposed that he was posted as MHC, Police Station Sujanpur since 2011 onwards. On 11.07.2012, HHC Amarjit Singh deposited the case property with him and he made the entries regarding the deposit of case property at Sr. No. 52/12 in the malkhana register vide Ex. PW19/A. On 12.07.2012, LC Reema deposited the case property with him and he made the entries regarding the same at Sr. No. 53/12 vide Ex. PW19/B. On 14.07.2012, ASI Hakam Singh deposited the case property with him and it was deposited in the Malkhana register at Sr. No. 54/12 vide Ex. PW-19/C. On 25.07.2012, the abovementioned sealed parcels were handed over to Constable Lekh Raj for depositing the same at State Forensic Science Laboratory, Junga vide RC No. 82/12.
21. PW-20, Dr. Sunita Galoda, issued MLC Ex. PW20/C. According to her opinion, sexual intercourse had taken place and there were signs of recent abortion. According to PW-21, Kuldeep Chand, ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 13 accused Mast Ram and his wife were present when they visited the house of Ajit Singh. Ajit Singh and Mast Ram agreed and entered into a compromise, wherein it was settled that the accused will bear the .
expenses of her marriage.
22. PW-22, ASI Hakam Singh, deposed that on the basis of the complaint, he registered FIR No. 66 of 2012, dated 11.07.2012, Ex. PW22/A. Thereafter, he immediately went to the house of the prosecutrix. He recorded the statements of Nikki Devi, Poonam, Kusum & Tripta Devi under Section 161, Cr. P.C. On 14.07.2012, he went to Village Chabutra to the house of the prosecutrix, where she produced her clothes, which were taken into possession vide seizure memo Ex. PW-2/A. On 11.07.2012, the prosecutrix was sent for medical examination to CHC Sujanpur. Accused was also sent for medical examination to CHC, Sujanpur.
23. PW-23, SI Parkash Chand, deposed that on 12.07.2012, at about 8:30 a.m., he left Police Station and went to village Dhardu. On reaching, he associated Shakuntla Devi, Tripta Devi, Puran Chand, Joginder Kumar and Raman Kumar. They went to Jhangri jungle. The prosecutrix identified the place where she was raped by the accused. Spot map Ex. PW23/A was prepared. Thereafter, the prosecutrix took the police party to the house of the accused at village Chabutra and got identified the room where she had been raped by the accused and spot map Ex. PW23/B was prepared. Statements of the witnesses were recorded. Statement of the prosecutrix was recorded ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 14 under Section 164, Cr. P.C. on 16.07.2012. On 20.07.2012, he took into possession the medical record regarding abortion of the prosecutrix. He also obtained the date of birth certificate of the .
prosecutrix from the Panchayat Secretary.
24. The accused has produced DW-1, Ms. Manisha Kumari as defence witness. According to her, she was student of 10+1 at Govt. Sr. Sec. School, Chabutra. She took admission in this School on 10.04.2012. Prior to this, she was studying in Govt. Sr. Sec. School, Rail, Tehsil Nadaun, District Hamirpur, H.P. She deposed that family of the accused comprised of his mother, wife, son, daughter-in-law and two grand daughters. Prosecutrix was also studying in her class. She knew her since she joined the School on 10.04.2012. In her cross- examination, she denied the suggestion that she was knowing the prosecutrix since 2006 onwards and they were good friends. Accused also examined DW-2, Sh. K.C. Katoch and DW-3, Sh. Beer Singh. They deposed about the admission of Manisha Kumari.
25. According to the prosecutrix (PW-2), she had gone to the house of accused to see her classmate. She was not at home. The accused was at home. He took her in his room, shut the same and said that he wanted to establish physical relations with her. Accused forced her to lie on the bed and despite her resistance, he committed sexual intercourse against her wishes and without her consent. He also threatened her to do away with her life in case she disclosed the incident anywhere. Thereafter also, whenever accused got time and ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 15 opportunity, he continued to have sexual intercourse with her. He used to give her `100/-. She went to Thakur Clinic on 02.07.2012 for medical check up. She was found pregnant. She came back and .
narrated the incident to her mother. She was again sent to hospital, where her abortion was conducted. She did not know the name of the village where the accused resides. Police recorded her statement 2-3 times. She disclosed that the accused used to give her `100/- (she was confronted with her statements dated 11.07.2012 and 12.07.2012 made under Section 161, Cr. P.C. wherein it was not so recorded). She also disclosed that she had gone to the house of the accused to meet his grand daughter Manisha (she was confronted with her statements dated 11.07.2012 and 12.07.2012 under Section 161 Cr. P.C. wherein it was not so recorded). She also admitted that accused Mast Ram was married and his son was also married and they live together in the same house. She also admitted in her cross-examination that when she was discharged from Thakur Clinic, they returned back home in the vehicle of the accused. She has made improvements in her statement while appearing in the Court and there is variance in her statements recorded under Section 161 Cr. P.C. on 11.07.2012 and 12.07.2012 and the statement made in the Court. Case of the prosecution is that the prosecutrix had gone to the house of the accused to meet his grand daughter, but it was not so stated in her statement made on 11.07.2012 and 12.07.2012. It was also her case that she was given `100/- every time by the accused, but it was not stated in her ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 16 statement recorded under Section 161 Cr. P.C. recorded on 11.07.2012 and 12.07.2012. She went to the hospital on 02.07.2012 and when she came back, she narrated the incident to her mother. Thereafter, she .
again went to the hospital on 03.07.2012 and was admitted in Thakur Clinic, Hamirpur. When she was discharged, she came back in the vehicle of the accused. It is not believable that when the entire family knew that the accused had committed rape on the prosecutrix, why would she come back in the vehicle owned and driven by the accused. Similarly, PW-3, Smt. Shakuntla Kumari, mother of the prosecutrix in her cross-examination has admitted that the day her daughter went for her medical check up at Thakur Clinic Hamirpur, she travelled to and fro in the Taxi of the accused Mast Ram. PW-5, Smt. Saroti Devi, who accompanied the prosecutrix to Thakur Clinic, Hamirpur, has also admitted that they returned home from Clinic in the vehicle of the accused on 05.07.2012. She further admitted in her cross-examination that the prosecutrix was discharged from the Clinic on 05.07.2012 at 7:00 a.m. Mother of the prosecutrix was also present and they returned home in the vehicle owned by the accused. The family after knowing the fact that the accused had committed rape on prosecutrix would not have gone to the Clinic and come back in the vehicle of the accused. They would have never boarded the vehicle owned and driven by the accused after the incident has been narrated by the prosecutrix to her mother, as noticed by us hereinabove.
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26. Case of the prosecution is also that a compromise was also arrived at vide Ex. PW6/A, whereby the accused has admitted his guilt. According to PW-3, Shakuntla Kumari, no compromise had taken place .
before the Panchayat with the accused. She was declared hostile. She did not know the person who scribed the compromise. She also admitted that the compromise did not take place in her presence. PW-5, Smt. Saroti Devi, deposed that on 05.07.2012 before the prosecutrix was discharged, they called the accused alongwith the vehicle and enquired about the facts disclosed by the prosecutrix. According to her, the accused admitted his fault and gave `6000/- to meet the expenses of the abortion. However, in her cross-examination, she was confronted with her statement Mark-C, wherein it was not so stated.
27. The other witness qua the compromise Ex. PW6/A, Sh. Puran Chand was also declared hostile. In his cross-examination by the learned Public Prosecutor, he denied the suggestion that after Ajit Singh narrated him the matter, he enquired from the accused present there about his involvement on which he admitted his fault. He did not know, who has written the compromise Ex. PW6/A. Similarly, PW-7, Sh. Joginder Singh was also declared hostile. There is variance in the statements of PW-6, Sh. Puran Chand, Up Pradhan, Gram Panchayat Chabutra and PW-7, Sh. Joginder Singh, Ward Member, Gram Panchayat Chabutra. PW-11, Sh. Ajit Singh, father of the prosecutrix, in his cross-examination has admitted that while making statement to the police, he had not disclosed that his daughter told him of being ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 18 raped by the accused for the last 1-1 ½ years. In his statement to the police, he had disclosed that the accused during the meeting in the presence of the Panchayat Members and other persons, admitted his .
guilt and fault (he was confronted with his statement Mark-F wherein it was not so recorded). In his statement to the police, he had told that the accused had borne the expenses of the abortion (he was confronted with his statement Mark-F, wherein it was not so recorded).
28. The case of the prosecution is that the prosecutrix was raped in the house of accused and in forest. The accused was married. His son was also married. He was living with his family, i.e., wife, son and daughter-in-law and two grown up grand daughters. It is not believable that the accused could rape the prosecutrix in the presence of all the members of his family, as alleged by the prosecutrix.
29. The alleged compromise, Ex. PW6/A is doubtful. We reiterate that if the accused was involved, the family of the prosecutrix would have never gone in his vehicle for medical check up on 3rd July, 2012 and 5th July, 2012. The relations would have become immediately bitter when the prosecutrix had told her mother about the alleged involvement of the accused. The version of the prosecutrix does not inspire confidence. There is variance in the statements of the witnesses recorded in the Court and previous statements recorded under Section 161 Cr. P.C. The contradictions made are major in nature. Consequently, the prosecution has failed to prove the case against the accused beyond reasonable doubt. The defence of the accused is also ::: Downloaded on - 15/04/2017 18:21:57 :::HCHP 19 probablised that the family of the prosecutrix has to pay a sum of `6,000/- and they refused to pay and the accused was implicated in this case. The prosecution has to prove the case beyond reasonable .
doubt and the accused has to prove his defence by probability.
30. Accordingly, in view of the observations and discussions made hereinabove, the appeal is allowed. The judgment and order, dated 15.03.2013/19.03.2013, are set aside. The accused is acquitted of the charges framed against him. Fine amount, if already depositied, be refunded to the accused. He be released forthwith, if not required in any other case. The Registry is directed to prepare the release warrants and send the same to the concerned Superintendent of Jail.
(Rajiv Sharma)
Judge
(Sureshwar Thakur)
Judge
June 15 , 2015
(bhupender)
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